The opinion of the court was delivered by: SIMMONS
PAUL A. SIMMONS, UNITED STATES DISTRICT JUDGE
HISTORY, STATUTORY FINDINGS OF FACT AND/OR LAW, DISCUSSION AND ORDER IN REGARD TO DEFENDANT WILLIAM HALLOWAY DAVIS' MOTION FOR A BAIL BOND PENDING THE OUTCOME OF HIS APPEAL TO THE UNITED STATES COURT OF APPEALS, THIRD CIRCUIT, FROM THE ORDER OF THIS COURT WHICH REVOKED HIS PROBATION
The Defendant in this case, William Halloway Davis was the subject of a five count indictment involving the Defendant's alleged possession of a number of checks which said Defendant allegedly knew had been stolen from the mail. This indictment was filed with this Court on April 28, 1986, at Criminal No. 86-93.
On May 5, 1986, the Defendant appeared before a Federal Magistrate and pled not guilty. The Defendant had been previously placed on a $5000.00 unsecured bond. On June 12, 1986, the Defendant appeared before this Court and pursuant to a plea agreement with the U.S. Attorney, withdrew his plea of not guilty as to Count Two of said indictment and pled guilty to the same. The other Four Counts of said indictment upon motion of the Assistant United States Attorney were dismissed by this Court.
Based upon the Defendant's plea of guilty, to Count Two of said indictment, this Court formally adjudicated Defendant guilty and entered a judgment of conviction against the Defendant and on August 5, 1986, sentenced him as follows:
The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of four years; and on condition that the defendant be confined in a jail-type or treatment institution, such as the Community Treatment Center on the South Side for a period of 90 days, the execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant is placed on probation for a period of five years to commence upon the defendant's release from confinement upon the following terms and conditions:
1. That he comply with all local, state and federal rules and laws;
2. That he comply with the rules and regulations of the probation department;
3. That he make restitution in the sum of $513.30, payable at the rate of $20/month;
4. That the defendant be involved in a work release program and maintain his job;
5. Special assessment of $50 to be paid at the rate of $5/month;
6. That the defendant make payments of at least $5/month towards the fines and costs owed to the Allegheny County Courts. The Court recommended that the defendant be housed at the South Side Community Treatment Center so that he can participate in a work release program.
Mr. Davis was incarcerated at the Goodwill Community Treatment Center located on the South Side section of Pittsburgh and was released from the CTC on November 7, 1986, and entered upon the service of his three years of probation. At no time was the defendant in prison or under the direct or indirect jurisdiction of the United States Bureau of Prisons while at the Treatment Center, and up to and including the date of his probation revocation hearing he was personally living in this Federal Judicial District under the jurisdiction of this Court. (NOTE: Attached hereto is a transcript of the sentencing proceeding in this case.)
On November 6, 1986, a petition for probation revocation action was filed with regard to the above captioned case and thereafter on November 13, 1986, a hearing was held before this Court.
The Defendant was charged with having violated the terms of his commitment to the treatment center as follows:
1. The defendant admitted that he falsely told the officials at the treatment center that he was signing out to his place of employment on 10/4/86, when as a matter of fact he spent the day helping his father-in-law move his household furniture, etc.
2. The defendant admittedly was guilty of a curfew violation on 11/1/86, when he was due back to the Center from his place of employment at 2:15 P.M., and where he in fact did not arrive back at the Center until 6:55 P.M. over four hours later than the required time.
Based on the admitted violations of the rules of the Center and the conditions of his sentence, this Court concluded on November 13, 1986, during the period of his probation, after a full hearing, and by clear and convincing evidence, the truth of which was admitted by the defendant, that the defendant had violated the terms and conditions of his probation, and thereupon this Court revoked said probation, and sentenced defendant to the custody of the Attorney General or his authorized representative for imprisonment for a period of four years.
On November 18, 1986, the defendant filed a notice of appeal from the Order of this Court revoking the probation of the defendant. On November 19, 1986, the defendant moved this Court for bail and stay of sentence pending the outcome of the appeal from this Court's Order revoking defendant's probation.
Because it seemed clear to this Judge beyond doubt that Rule 9(b) of the Rules of Appellate Procedure [as is clearly set forth in the caption of said Rule 9, Section (b)" in bold face type, "(b) Release Pending Appeal from a Judgment of Conviction "], did not apply in this case since the defendant is not appealing from a Judgment of Conviction or the terms and/or conditions of sentence, but rather is only appealing from a revocation of his probation, this Court on November 20, 1986, summarily refused defendant's application for bail pending his first appeal.
A bail hearing was held on December 24, 1986, and the following findings were made by this Court:
Findings of Fact required by Title 18 Section 3143(b)(1) of the United States Code and Discussion.
This Court finds that the defendant has failed to provide clear and convincing evidence that he is not likely to flee if he is released on bail. To the contrary, the uncontested evidence clearly shows that the defendant has failed recently on at least two occasions to observe time limits set for his return to the Community Treatment Center and this conduct gives credence to the possibility that the defendant may flee if given an opportunity to do so.
Findings Required by Title 18 Section 3143(b)(2) of the United States Code and Discussion.
It is the finding of this District Court that this appeal to the Circuit Court of Appeals is for the purpose of delay and said appeal does not raise a substantial question of law or fact that is likely to result in a reversal of this Court's Order which revoked the defendant's probation.
In the first place this Court knows of no authority which authorized the granting of bail to a defendant who is appealing an order revoking his probation and who has been adjudicated guilty based on an uncontested legally proper plea of guilty. As heretofore noted, Rule 9(b) of the Appellate Rules of Procedure dealing with bail pending appeal has to do only with cases involving an appeal from a judgment of conviction which is not this case at all.
In any event, it is the judgment of this Court that there is no "substantial" or "fairly debatable" question of law likely to result in a reversal of this Court's Order revoking the defendant's probation. (See U. S. v. Smith 793 F.2d 85, 1986, Third Circuit)
18 U.S. Code Section 3651 grants this Court the power to impose probation. 18 U.S. Code Section 3653 states that "at any time within the probation period . . . the Court may issue a warrant" for the probationer's arrest. After a hearing the Court may revoke the probation. Further, 18 U.S.C. Section 3651 provides that "The Court may revoke or modify any condition of probation or may change the period of probation".
In this case the defendant's three year probation began on November 7, 1986, and he was released from official custody at that time. On November 13, 1986, during his actual period of probation and after he was released from the Treatment Center, a probation violation hearing was held and defendant's probation was revoked.
At no time ever did the Bureau of Prisons and/or the Attorney General have personal jurisdiction over this defendant. At all relevant times the defendant has been a resident of the United States Judicial District, known and designated as the Western District of Pennsylvania.
At no relevant time has this Court interfered in any way with the parole and clemency powers vested in the executive branch as was the topic of discussion in Affronti v. United States 350 U.S. 79, 83, 76 S. Ct. 171, 100 L. Ed. 62 (1955). As aforestated, all action taken by this Court in regard to the revocation of the defendant's probation was taken during the defendant's official period of probation in this Court's judicial district and at a time when the executive branch of our government had no control of any kind whatsoever over the defendant.
This matter has been conclusively put to rest by your Honorable Court in the case of United States v. Veatch, 792 F.2d 48 (3rd Cir. 1986) where this District Court was clearly permitted to revoke the probation of defendant Veatch for improper activities of the defendant Veatch that occurred before the beginning of the probationary time period.
In the case at bar this defendant Davis' probation likewise was revoked for his activities that occurred before the beginning of the probationary period.
The defendant's attorney has failed to point to any overriding public policy or to any constitutional denial of rights that might be occasioned by the revocation of defendant Davis' probation and denial of bail in these circumstances where Davis has pled guilty to the crime charged.
In fact, the record will show that this Court went out of its way to treat the defendant fairly and humanely. Although this defendant was a second offender, this Court placed this man in a work release program to protect his employment; this work release program was only to last for 90 days; the defendant was kept in the community close to his family, children and wife; the defendant was given a week off from the Treatment Center to care for his sick wife and children; defendant was given a second chance to "make good" after he failed to honor the curfew on the first occasion at the Treatment Center; defendant was given a chance to make restitution in small payments of $20.00 per month with no fine and no costs; defendant was given a chance to avoid the consequence of his state parole violation by making $5.00 per month payments to Allegheny County.
This defendant has taken improper and unfair advantage of both the State and Federal Judicial System. He does not appreciate kind and humane treatment. Defendant was duly warned on the record as to what he could expect if he violated the conditions of his sentence, and he must now suffer the consequences of his actions.
Our system of criminal justice will never work to deter crime if it approves the release of this defendant on bail while he is appealing a probation revocation order and after he has intelligently and voluntarily pled guilty to the offense in question and after he has admittedly on two occasions violated the sentencing orders of this Court. (See the sentencing transcript attached herewith).
To hold that there is no sanction available to this Court in this case where the executive branch admittedly has no jurisdiction to mete out appropriate sanctions, would be an open invitation for defendant Davis to figuratively "thumb" his nose at the judicial process, (which is what defendant Davis apparently has been doing successfully for much of his life.)
Clearly, in this Court's opinion, Davis' appeal of this Court's Order revoking his probation does not raise a substantial question of law or fact that is likely to result in a reversal of said Order and Davis' appeal is only for the purpose of delay.
Further, and, in any case, Davis as an admitted felon who has voluntarily and intelligently pled guilty to Count Two of the indictment as charged without an appeal of the same, is not entitled to bail on the findings of fact ...